Session March 14, 2018
from the Chancery Court for Coffee County No. 2015-CV-333 L.
Craig Johnson, Judge
parental termination case, maternal Grandparents sought
termination of both Mother's and Father's rights on
the grounds of: (1) abandonment by willful failure to support
and (2) abandonment by willful failure to visit. The trial
court found no grounds for termination as to Mother and only
one ground-failure to support-as to Father. The trial court
however found that it was not in the child's best
interest to terminate Father's rights. We affirm the
trial court's judgment in all respects.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Christopher R. Stanford, Manchester, Tennessee, for the
appellants, Anthony O. and Bethany O.
L. Lynch, Tullahoma, Tennessee, for the appellee, Katheryn O.
Thompson G. Kirkpatrick, Manchester, Tennessee, for the
appellee, John S.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which Frank G. Clement, P.J., M.S., and W. Neal
McBrayer, J., joined.
STEVEN STAFFORD, JUDGE
S. ("Addy" or "the child") was born in
February 2013 to unmarried parents John S.
("Father") and Kathryn O. ("Mother")
(together with Father, "Parents"). Mother and Father
engaged in a long-term, tumultuous relationship that included
abundant drug abuse and criminal charges for both. After Addy
was born, she and Mother resided with Mother's parents,
Anthony and Bethany O. ("Grandparents"), for a
short time because Mother needed assistance with Addy's
care. Shortly thereafter, Mother moved out of
Grandparents' home, leaving Addy to be cared for by
Grandparents. Addy continues to reside with Grandparents, who
support Addy financially and provide her with a stable and
filed a dependency and neglect petition on March 21, 2014, in
the Coffee County Juvenile Court ("juvenile
court"). The petition detailed Father's multiple
failures in providing for and raising Addy and Mother's
agreement that Grandparents should be temporary legal
guardians of Addy due to both Mother's and Father's
inability to provide for Addy's needs. The parties
participated in mediation, and on November 13, 2014,
Grandparents obtained temporary custody of Addy through an
agreed order. The order granted Grandparents legal and
physical custody of Addy and outlined different steps Mother
and Father must complete to regain custody of the child.
These steps included hair follicle drug screening, urine drug
screens, and rehabilitation meetings. Upon completion of each
step, Mother and Father could increase their visitation time
with Addy, with the opportunity to eventually regain full
and Father continued to exercise their visitation with Addy
after the agreed order was entered. Visitation was, however,
essentially the extent of their compliance with the order.
Mother and Father both took only one hair follicle drug
screen as the court ordered, and both parents failed their
hair follicle test by testing positive for an assortment of
different substances. After failing their respective drug
tests, Parents did not take any urine tests or attend
rehabilitation meetings pursuant to the agreed order. Parents
took additional drug tests after the petition for termination
was filed, which is discussed in more detail, infra.
Mother and Father have both struggled with drug addiction
throughout Addy's life. Eventually, their drug abuse
resulted in criminal charges. Father has been convicted of
drug possession and driving under the influence. Mother has
also been convicted of driving under the influence. Mother
and Father were also arrested together in 2015 for drug
possession and possession of drug paraphernalia.
January 2015, Grandfather initiated a child support action
through the State of Tennessee seeking support from Mother.
On February 4, 2015, however, Grandfather voluntarily
dismissed the pending child support action due to
Mother's medical issues, which prevented her from
working. The order stated that the matter was
"dismissed due to [Grandfather] no longer wanting to
pursue child support from [Mother]." On April 22, 2015,
Grandparents initiated a second child support case using a
private attorney. Grandparents' attorney personally
served both Mother and Father with summonses to the juvenile
court while Mother and Father were at the Coffee County
Justice Center facing criminal charges. The summonses
specified that the hearing regarding child support would
occur on June 1, 2015.
Mother nor Father appeared for the child support hearing. The
juvenile court entered a default judgment against Mother and
Father on June 17, 2015, ordering each parent to pay $308.00
in support per month. The June 17 judgement was mailed to
Mother and Father at Mother's paternal grandmother's
home. It is disputed as to whether Grandparents believed this
was where Mother was actually residing. Mother claims that
she did not receive the default order at that time, and was
unaware of the order requiring her to pay the monthly child
support until after the termination petition was filed.
Father also claims he was unaware of the order. Both parents
later testified, however, that they were aware of their duty
to financially support Addy. Father paid $20.00 per week of
support in July 2015, totaling $80.00. Mother paid no support
prior to the filing of the termination petition, but provided
Addy with doughnuts, an outfit, and tomatoes. Mother paid a
total of $95.00 in support after the petition was filed.
Parents' ongoing drug abuse problems to this point, both
were able to secure employment prior to the filing of the
termination petition. Father worked in construction, and
testified that he made approximately $100.00 per day. Mother
was unable to work from late 2014 into early 2015 due to
major surgeries. Mother resumed work in October 2015 at Aspen
Technologies Inc. ("Aspen Technologies"), a factory
located in Manchester, Tennessee. Mother, however, only
worked at Aspen
for approximately three weeks, ending her employment in early
November 2015. According to Mother, her issues with
maintaining employment related to her inability to secure
December 11, 2015, Grandparents filed a petition to terminate
both Mother's and Father's parental rights in the
Coffee County Chancery Court ("trial court").
Grandparents relied on three separate grounds in their
petition: (1) abandonment by willful failure to support, (2)
abandonment by willful failure to visit, and (3) persistence
of conditions. A trial was conducted on March 21, March
24, and March 30, 2017.
trial, Mother testified candidly about her struggle with drug
addiction. She also testified that she had not used any drugs
for almost one year, and passed multiple drug tests. Mother
also stated that she had a steady job at Speedway Market in
Tullahoma, Tennessee, and was expecting a promotion. Mother
testified that, at the time of trial, she had a stable home
and had been living with her boyfriend since the summer of
2016. She also stated that she has consistently visited Addy,
who calls her "Mommy, " once a week.
Mother's visitation with Addy, Grandparents testified
that Mother visited only a minimal amount of times from
August to December 2015, including missing over fifteen
visits from November 2015 to February 2016. Grandparents
introduced Grandmother's written log of Mother's
visits into the record, which detailed each of Mother's
visits. These logs detailed only six visits in the period
relevant to this appeal, as discussed,
infra. Grandparents also stated that during
Mother's visits with Addy she was often disengaged,
smoking, playing on her phone, or under the influence of
illegal drugs. Grandparents noted that Mother usually did not
stay the full six hours allotted to her for her visits.
Mother, however, testified that she visited Addy more than
the dates logged by Grandmother and that she was engaged
during the visitation. Mother testified that her failure to
attend every visitation with Addy resulted from a combination
of unreliable transportation and disagreements with
Grandparents. Mother described her visits with Addy as
"great" and that the two enjoyed doing activities,
such as going swimming and doing hair and make-up together.
also testified at trial. He, too, was candid about his drug
abuse problems. Father explained that he was incarcerated
from September 29, 2015, to December 1, 2015, apparently as
the result of a probation violation stemming from previous
drug convictions. Father stated that he has not had any more
arrests or drug charges since the beginning of 2016. From
Father's testimony, it appears that he has taken three
drug screens since the petition was filed, one on August 19,
2016, which tested positive for THC (marijuana) only; one in
December 2016, which tested positive for methamphetamine,
amphetamine, and marijuana; and the third on the day of the
trial, when he tested negative for all substances. Following
his December 2016 drug test, Father testified that he
participated in and completed a three-week rehabilitation
program at Mirror Lake Recovery Center in early 2017.
Mother, Father stated that he also was living with his
significant other and her six year old son in a stable,
drug-free household. There was also no dispute that Father
held a stable job. Furthermore, Father stated that he has not
missed one visitation with Addy in 2016. He also testified
that Addy has a strong bond with Father's niece, Bella,
along with Father's mother and sisters. Father's
visitations also generally take place on his mother's
twenty-five acre farm, where Addy has a horse named August
with whom she also has a strong bond. Father testified that
Addy is comfortable with him during their visitations and she
also calls him "Daddy" when they are together.
April 25, 2017, the trial court issued its findings of facts
and conclusions of law, finding that Grandparents failed to
present clear and convincing evidence as to any ground to
terminate Mother's parental rights. The trial court found
that Grandparents did establish by clear and convincing
evidence that Father willfully failed to support his child.
The trial court further concluded that it was not in
Addy's best interest to terminate Father's rights, in
large part due to the guardian ad litem's recommendation
against termination of Father's parental rights if
Mother's rights were not terminated. The trial court
entered its final order denying termination and remanded the
matter to juvenile court for any further custody issues on
May 9, 2017. From this order, Grandparents timely appealed on
May 10, 2017.
present four issues on appeal, which we have taken from their
appellate brief, as follows:
1. Whether the trial court erred in finding that the Mother
did not willfully fail to pay child support during the
relevant four-month period,
2. Whether the trial court erred in finding that the Mother
did not willfully fail to visit the child during the relevant
3. Whether the trial court erred in finding the child's
best interest were not served by terminating the Mother's
4. Whether the trial court erred in finding the child's
best interest were not served by terminating the Father's
presents an additional issue, which we have taken, and
slightly restated, from his brief: Whether the trial court
erred in determining that the Grandparents proved by clear
and convincing evidence that Father willfully failed to pay
support during the relevant four-month period.
Tennessee Supreme Court has explained that:
A parent's right to the care and custody of her child is
among the oldest of the judicially recognized fundamental
liberty interests protected by the Due Process Clauses of the
federal and state constitutions. Troxel v.
Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d
49 (2000); Stanley v. Illinois, 405 U.S. 645, 651,
92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re Angela
E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption
of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995);
Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993).
But parental rights, although fundamental and
constitutionally protected, are not absolute. In re
Angela E., 303 S.W.3d at 250. "'[T]he [S]tate
as parens patriae has a special duty to protect minors. . .
.' Tennessee law, thus, upholds the [S]tate's
authority as parens patriae when interference with parenting
is necessary to prevent serious harm to a child."
Hawk, 855 S.W.2d at 580 (quoting In re
Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983));
see also Santosky v. Kramer, 455 U.S. 745, 747, 102
S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E.,
303 S.W.3d at 250.
In re Carrington H, 483 S.W.3d 507, 522-23 (Tenn.
2016) (footnote omitted). In Tennessee, termination of
parental rights is governed by statute which identifies
"'situations in which that state's interest in
the welfare of a child justifies interference with a
parent's constitutional rights by setting forth grounds
on which termination proceedings can be brought.'"
In re Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct.
App. 2013) (quoting In re W.B., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618
at *7 (Tenn. Ct. App. Apr. 29. 2005) (citing Tenn. Code Ann.
§ 36-1-113(g)). Thus, a party seeking to terminate a
parent's rights must prove (1) existence of one of the
statutory grounds and (2) that termination is in the
child's best interest. Tenn. Code Ann. §
36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367
(Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546
the fundamental nature of a parent's rights, and the
serious consequences that stem from termination of those
rights, a higher standard of proof is required in determining
termination cases. Santosky, 455 U.S. at 769. As
such, a party must prove statutory grounds and the
child's best interest by clear and convincing evidence.
Tenn. Code Ann. § 36-3-113(c); In re Valentine,
79 S.W.3d at 546. Clear and convincing evidence
"establishes that that truth of the facts asserted is
highly probable . . . and eliminates any serious or
substantial doubt about the correctness of the conclusions
drawn from evidence[, ]" and "produces in a
fact-finder's mind a firm belief or conviction regarding
the truth of the facts sought to be established." In
re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004).
termination cases, appellate courts review a trial
court's factual findings de novo and accord these
findings a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); In re
Carrington H, 483 S.W at 523-24 (citing In re
Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re
M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re
Adoption of A.M.H, 215 S.W.3d 793, 809 (Tenn. 2007)).
Our supreme court further explains:
The trial court's ruling that the evidence sufficiently
supports termination of parental rights is a conclusion of
law, which appellate courts review de novo with no
presumption of correctness. In re M.L.P., 281 S.W.3d
at 393 (quoting In re Adoption of A.M.H., 215 S.W.3d
at 810). Additionally, all other questions of law in parental
termination appeals, as in other appeals, are reviewed de
novo with no presumption of correctness. In re Angela
E., 303 S.W.3d at 246.
In re Carrington H., 483 S.W at 524.
in the event that the "resolution of an issue in a case
depends upon the truthfulness of witnesses, the trial judge,
who has had the opportunity to observe the witnesses and
their manner and demeanor while testifying, is in a far
better position than this Court to decide those issues."
In re Navada N., 498 S.W.3d 579, 591 (Tenn. Ct. App.
2016) (citing McCaleb v. Saturn Corp., 910 S.W.2d
412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957
S.W.2d 834, 837 (Tenn. Ct. App. 1997)). This Court therefore
"gives great weight to the credibility accorded to a
particular witness by the trial court." In re
Christopher J., No. W2016-02149-COA-R3-PT, 2017 WL
5992359, at *3 (Tenn. Ct. App. Dec. 4, 2017) (citing
Whitaker, 957 S.W.2d at 837).
is a statutory ground for termination of parental rights.
Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code
Annotated section 36-1-102 defines "abandonment, "
in relevant part, as
(1)(A) For purposes of terminating the parental or guardian
rights of a parent or parents or a guardian or guardians of a
child to that child in order to make that child available for
adoption, "abandonment" means that:
(i) For a period of four (4) consecutive months immediately
preceding the filing of a proceeding or pleading to terminate
the parental rights of the parent or parents or a guardian or
guardians of the child who is the subject of the petition for
termination of parental rights or adoption, that the parent
or parents or a guardian or guardians either have willfully
failed to visit or have willfully failed to support or have
willfully failed to make reasonable payments toward the
support of the child;
*** (iv) A parent or guardian is incarcerated at the time of
the institution of an action or proceeding to declare a child
to be an abandoned child, or the parent or guardian has been
incarcerated during all or part of the four (4) months
immediately preceding the institution of such action or
proceeding, and either has willfully failed to visit or has
willfully failed to support or has willfully failed to make
reasonable payments toward the support of the child for four
(4) consecutive months immediately preceding such
parent's or guardian's incarceration, or the parent
or guardian has engaged in conduct prior to incarceration
that exhibits a wanton disregard for the welfare of the
Code Ann. §36-1-102(1)(A)(i)-(iv). A central inquiry a
court must make when determining whether a parent abandoned
his or her child pursuant to section 36-1-102(1)(A) is
whether the abandonment was willful. See Tenn. Code
Ann. § 36-1-102(1)(A)(i) & (iv). This Court has
explained the concept of willfulness in parental termination
The concept of "willfulness" is at the core of the
statutory definition of abandonment. A parent cannot be found
to have abandoned a child under Tenn. Code Ann. §
36-1-102(1)(A)(i) unless the parent has either
"willfully" failed to visit or
"willfully" failed to support the child for a
period of four consecutive months.
In the statutes governing the termination of parental rights,
"willfulness" does not require the same standard of
culpability as is required by the penal code. Nor does it
require malevolence or ill will. Willful conduct consists of
acts or failures to act that are intentional or voluntary
rather than accidental or inadvertent. Conduct is
"willful" if it is the product of free will rather
than coercion. Thus, a person acts "willfully" if
he or she is a free agent, knows what he or she is doing, and
intends to do what he or she is doing.
Failure to visit or support a child is "willful"
when a person is aware of his or her duty to visit or
support, has the capacity to do so, makes no attempt to do
so, and has no justifiable excuse for not doing so. Failure
to visit or to support is not excused by another person's
conduct unless the conduct actually prevents the person with
the obligation from performing his or her duty or amounts
to a significant restraint of or interference with the
parent's efforts to support or develop a relationship
with the child[.] The parental duty of visitation is separate
and distinct from the parental duty of support. Thus,
attempts by others to frustrate or impede a parent's
visitation do not provide justification for the parent's
failure to support the child financially.
The willfulness of particular conduct depends upon the
actor's intent. Intent is seldom capable of direct proof,
and triers-of-fact lack the ability to peer into a
person's mind to assess intentions or motivations.
Accordingly, triers-of-fact must infer intent from the